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Rape and consent – can a phone app help?

The issue of consent remains an evidentially difficult concept in allegations of rape and sexual assault. On 23 July, the Evening Standard reported on the No Consent app “What-About-No”. The app allows parties to record their consent to engage in sexual acts. A further facility within the app allows parties to state, reinforce or record the fact that they do not or no longer consent. The recordings are uploaded to the cloud and can be retrieved if required. We accept it is not very romantic but could it help?

We have provided legal advice, assistance and representation in numerous cases concerning allegations of rape. We have represented complainants and those who are accused. In a significant proportion of cases, the fact that sex took place was not in dispute. The central issue is often whether informed consent had been given.

A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.

Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

S74 of the SOA 2003 defines consent in the following way:

“For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice”

A successful defence often requires the accused to set out in great detail:

What was said or done that amounted to consent;

Why they thought consent was informed and freely given.

This is with a view to enabling the jury to assess whether the accused genuinely believed consent was given and whether that belief was reasonable.

This is not as easy as it sounds. Think about your last consensual act. What was it your partner said or did that evidenced consent? Was it a look, the atmosphere, your impression of a positive response? Try to describe it objectively using words. It really is not easy to do.

Now add the fact that the act took place some time ago, maybe after drinks, perhaps with someone you did not know very well. Add youth and immaturity. Top that off with what is unfortunately a very British trait of reticence to talk about sex. You can see that the evidential bar is very high and why defendants (and complainants) are sometimes left wanting.

The law in this area has become quite sophisticated. The case of R. (F) v DPP [2013] 2 Cr.App.R. 21, DC reinforces the fact that consent has to be specific. In that case W agreed to sexual intercourse with H on his agreement to withdraw before ejaculation. The Court of Appeal upheld his conviction stating that W’s consent did not extend to ejaculation. As such at the point that H decided to ejaculate he acted without consent and his actions therefore amounted to rape.

Taking all these factors into account the app “What-About-No” may have a role despite the controversy that surrounds it.

There are myriad ways in which young people (and adults) understand this subject. There are some fantastic examples of relevant and accessible information e.g. “Consent, it’s as simple as tea“ (the video clip can be found here). However it remains a difficult subject to broach.

We agree that the app is not the answer. It is not a substitute for having a conversation. Nor does it provide an iron clad account for either party. It does not relieve either party of the need to check. However it is a way to start or continue an important conversation and as such it has value. It evidences the fact that both parties have turned their minds to the very important issue of consent and so might be a relevant circumstance under s1.2 of the SOA 2003.

As lawyers providing advice on sexual offences (one of whom is a parent of teenaged children) it is something that we, cautiously, welcome.

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